A number of Kenyans have sought asylum in the UK under the guise of protection from persecution for being gay.
Recent cases concluded by the UK Immigration Tribunal reveal that the asylum seekers claim to be at risk of harassment from Kenyan authorities if they are to be returned home.
A good example is that of a woman who on March 6, 2009 submitted details to UK authorities claiming she feared to return to Kenya as a result of her sexuality, and also the fear of her daughter being subjected to Female Genital Mutilation.
However, court documents show the woman was deported from the UK in May 2000 after serving a seven-year prison sentence for drug-related offences. She was able to find her way back to the UK using a fake Swaziland passport in 2005.
Born on April 29, 1962, she was in May 2008 issued with a certificate of naturalisation as a British citizen. She earned British citizenship after presenting another counterfeit French passport with a different date and place of birth.
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She was finally arrested on May 22, 2008 and charged with possession of a false instrument when her true identity became known to authorities.
In her asylum claim, she alleged to have left France at the age of nine and then lived in Dubai, Kenya and Denmark. She claimed to have been married in Kenya, although she was a lesbian and she had been involved in three lesbian relationships.
Her first relationship, she said, was with a woman identified as V, which lasted from 1995 to 2001. The second was with a woman identified as D, which lasted from 2003 until 2010 and the third, her current, was with another woman identified as AZ. When she returned to Kenya in 2000, she said, her ex-husband found out she was a lesbian. He gathered his brother, nephew and cousin who beat and raped her.
A herbalist is alleged to have made marks on her body and rubbed portions onto them, while burning her thighs with a hot iron rod. In August 2000, V came to Kenya and took her to hospital. She also arranged for her return to the UK in November or December 2000 using a counterfeit document.
She was forced to repay V for the flight ticket and travel documents. The Kenyan woman said although she was in love with V, V forced her to work as a prostitute so that she could earn the money to pay her back. She claimed to have been trafficked to the UK by V.
In court documents, the UK Secretary of State is said to have served her with a notice of a decision depriving her of her British citizenship on April 29, 2009. In September 2012, she requested the return of her fake French passport and sought permission to return to Kenya to witness the installation of her brother as a Nabongo (king). The request was denied.
Arrested in UK
She was arrested in the UK a few years later for driving offences and was detained under immigration laws. All this time she was fighting to gain asylum. Following a screening interview, after claiming she was a victim of human trafficking a referral was made under the National Referral Mechanism and her asylum claim was rejected.
The Secretary of State rejected her claim to be gay or bisexual and did not accept her account of being in a gay relationship. It was ruled that she would not be at risk when she returned to Kenya.
Aggrieved by the decision, she lodged her appeal on June 28, 2017, an application that was dismissed on July 6 by the UK Upper Tribunal Judge Susan Kebede.
In another case, a man whose identity was not disclosed by the tribunal is said to have entered the UK in January 2018 and claimed protection in April the same year on the basis that he would be at risk if he returned home for being gay.
Born in June 1992, the man claimed he was orphaned as a child and raised by his stepfather who allegedly began to sexually abuse him from around the age of 11. The abuse went on until 2014 when the man went to work in Qatar. He would return to Kenya for holidays, staying with his stepfather, a man he later on started referring to as a partner.
He claimed his stepfather’s house had been burnt by locals because he was gay and he left the country.
His claims were, however, rejected on October 29, 2018. He appealed to the First tier Tribunal using evidence such as a letter from his church, another from an organisation called Rainbows Across Borders, and statements from friends testifying of his sexuality. Various pieces of medical evidence were presented.
The application was heard by Judge Adrian Seeloff at Hatton Cross on March 22, 2019, who dismissed it on April 1, 2019. Seeloff did not find that the man was in danger if he returned to Kenya.
“It is clear that none of the medical professionals have questioned whether or not the appellant’s account is true. Accordingly, whilst they have all described the appellant as showing symptoms of mental illness and post-traumatic stress disorder, none of them appeared to have given consideration to the possibility that the account was being manufactured or embellished, or whether the symptoms could have a different cause from what the appellant claims,” reads part of Seeloff’s decision.
The judge did not find it credible that his stepfather would reveal to other people he had been abusing the appellant or that he was gay. Aggrieved by the decision, he was allowed to appeal on the basis that the judge erred in the treatment of a medico-legal report from a Dr Ginn, a consultant psychiatrist.
He also maintained in the appeal that he was at risk in Kenya because he was gay. The Secretary of State for the Home Department did not accept that he was gay and so it was left to him to establish such contested truism.
Experts say in considering such a claim, the historical account of an applicant can be very significant. Subsequent events, for instance how the person has led their life since coming to the UK, are key indicators. Medical reports can add support to the credibility of the claim. In summary, a number of factors come into play.
In his judgement dismissing the appeal, Deputy Upper Tribunal Judge Farrelly found no material error demonstrated how the judge dealt with the appeal, adding that the psychiatric report did not confirm a major disabling mental illness.
As for a 28-year-old woman from Kitale in Usain Gishu County who went to the UK on a charity migrant visa in February 2019, her attempt to seek asylum on claims that she was a lesbian also hit a snag.
She appealed against the decision before the First Tier Tribunal, an application that was dismissed after the tribunal considered the judgement of the High Court in Kenya dated May 24, 2019, that noted that the court had dismissed petitions which sought to obtain declarations that the provisions of the Kenyan criminal code that criminalised gay sex were unconstitutional.
The tribunal pointed out that the problems faced by gay people in Kenya do not meet the threshold of seriousness which amounts to persecution of such persons.
Not satisfied with the judgement, the woman lodged another appeal claiming that the judge erred by failing to consider the effect of being stigmatised because homosexuality is illegal in Kenya.
She added that the judge failed to consider whether the cumulative effect of the conditions for the gay community in Kenya amounted to persecution, and whether it is unduly harsh for the appellant to relocate to Nairobi.
In his judgement delivered on October 21, Judge Lalji Mandalia said the conclusion reached by the judge was neither irrational nor unreasonable, a conclusion that was fully unsupported by the evidence.